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CISG CASE PRESENTATION

Netherlands 11 February 2009 Rechtbank [District Court] Arnhem (Tree case) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/090211n1.html]

Primary source(s) of information for case presentation: Case text

Case Table of Contents


Case identification

DATE OF DECISION: 20090211 (11 February 2009)

JURISDICTION: Netherlands

TRIBUNAL: Rb Arnhem [Rb = Rechtbank = District Court] (Court of Firsts Instance)

JUDGE(S): Mr. ter Heide

CASE NUMBER/DOCKET NUMBER: 172920 / HA ZA 08-1228

CASE NAME: Unavailable

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Trees


Classification of issues present

APPLICATION OF CISG: Yes [Article 1(1)(a)]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 8 ; 38 ; 39 [Also cited: Articles 6 ; 27 ]

Classification of issues using UNCITRAL classification code numbers:

8B [Interpretation of party's statement or other conduct: interpretation based on objective standards];

38A [Buyer's obligation to examine goods: time for examining goods];

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

Descriptors: Intent ; Examination of goods ; Lack of conformity notice, timeliness

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Editorial remarks

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1439&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Website of the Dutch courts <http://www.rechtspraak.nl/>; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=1439&step=FullText>

Translation (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Case text (English translation) [second draft]

Queen Mary Case Translation Programme

Court of First Instance Arnhem

11 February 2009 [172920 / HA ZA 08-1228]

Translation [*] by Maarten Draye [**]

PARTIES

[PLAINTIFF], [an Italian national] having his residence in Italy, (...), Plaintiff on the main claim, Respondent on the counterclaim [Seller] [...]

vs

[...]

Brienissen Bomen BV, a private limited liability company [under Dutch law], having its legal seat in Opheusden [The Netherlands] (...). Defendant on the main claim, Claimant on the counterclaim [Buyer].

[...]

1. PROCEDURAL ASPECTS

[...]

2. THE DISPUTE

Main claim:

      2.1 [Seller] runs a business in growing trees in Italy. [Seller] exports his trees to many countries. [Buyer] operates a nursery garden in Opheusden, The Netherlands.

      2.2 In November 2006, [Buyer] ordered trees from [Seller]. Subsequently, on 13 November 2006, [Buyer] sent a purchase confirmation. [Seller] identified the trees ordered with indication of type, stem size and number in a list titled "Brienissen Ordine totale" dated 22 November 2006. The price for the trees summed up in this list amounted to a total of 50,115.00. This list, with [Seller]'s general conditions attached thereto, was faxed back with signature and stamp by [Buyer] to [Seller]. It was agreed that the trees would be delivered at the company of [Seller] and that [Buyer] would organize and pay for the transport.

      2.3 The "Allgemeine Verkaufsbedingungen" [general conditions of sale] of [Seller] are applicable to the agreement. Article 9 of these general conditions stipulates: "every complaint regarding the amount of or damage to the delivered trees, must be reported by means of a written letter or fax within five working days from the date of delivery. Complaints that were not reported cannot be accepted (regardless of the cause). The buyer will not be compensated in case of loss of profits."

      2.4 [Seller] delivered the trees to [Buyer] in five consignments, i.e., 24 November 2006, 28 November 2006, 1 December 2006, 11 December 2006 and 20 December 2006. [Seller] issued the following invoices to [Buyer] for these deliveries:

      -    An invoice dated 24 November 2006 in the amount of 11,845.00;
      -    An invoice dated 28 November 2006 in the amount of 12,815.00;
      -    An invoice dated 1 December 2006 in the amount of 12,540.00;
      -    An invoice dated 11 December 2006 in the amount of 4,720.00;
      -    An invoice dated 20 December 2006 in the amount of 7,225.00;

      2.5 [Buyer] sent a fax message dated 5 December 2006 to [Seller], in which it complains about the size and quality of a number of trees in the deliveries of 24 November, 28 November and 1 December 2006. [Buyer] also sent another fax message dated 5 December 2006 to [Seller], referring to the previous fax message of that date, in which it gave notice that it would charge to [Seller] a claim for compensation of damages in the amount of 1,300 that it had received from one of its clients. Moreover, [Buyer] requested a reaction to its faxes.

      2.6 By means of a fax message dated 22 December 2006, [Buyer] complained to [Seller] about trees from the deliveries of 13 December and 21 December 2006. According to [Buyer], a number of the trees were too thin, too small and damaged, while it - moreover - did not receive one of the trees ordered and for which it thus had arranged for transport in vein.

      2.7 [Seller] did not react to these complaints. [Buyer] left the invoices from [Seller] unpaid.

      2.8 On 3 October 2007, [Seller] and Mr. Brienissen, manager of [Buyer], spoke at a trade-fair. On that occasion, they both signed a hand-written document stating:

"Zundert, 3.10.07
Proposal for the solution of the problems with the deliveries 2006/2007 [Seller]-[Buyer]
Point 1) [Buyer] will pay 30,000 by Friday 05.10.07 to [Seller];
Point 2) [Seller] and [Buyer] will discuss the issues (file) in the office of [Seller] in Pradena at the end of October 2007."

      2.9 [Buyer] did not pay 30,000 to [Seller] on 5 October 2007. Neither was the issue discussed between the parties at the end of October 2007.

3. MAIN CLAIM AND DEFENSE

      [SELLER'S POSITION]

      3.1 [Seller] claims payment of 58,332.42, to be increased with the legal commercial interest on 50,933.00 from 1 July 2008 onwards, for [Buyer] to bear the legal costs for among others the subsequent costs as well as the costs of the conservatory attachments placed. [Seller]'s claim aims at the [Buyer] abiding by the obligation of payment under a sale-purchase agreement. The amount of 58,332.42 claimed consists of:

      -    A main sum of 49.145,00;
      -    Legal interest until 1 July 2008 in the amount of 7,399.42; and
      -    Extra-legal costs in the amount of 1,788.00.

      [BUYER'S POSITION]

      3.2 [Buyer], on the other hand, submitted that [Seller] failed to meet its obligations and is thus responsible. The trees were not delivered, not delivered on time and not delivered in the right order. Moreover, some of the delivered trees were damaged or had the wrong stem size. Furthermore, [Seller] did not always invoice the agreed price. As a result, [Buyer] sustained damage. It therefore requests that the main claim be postponed and set off against its counterclaim for damages.

4. CONDITIONAL COUNTERCLAIM AND DEFENSE

      [BUYER'S POSITION]

      4.1 In a conditional counterclaim, in case the court would be of the opinion that a set-off is not possible, [Buyer] claims damages in the amount of 36,240.00, to be increased with interest and costs from the date of summons or the date of the present judgment onwards.

      [SELLER'S POSITION]

      4.2 [Seller] [...] disputes that a specific order for delivery of the trees was agreed between the parties. Moreover, he disputed that the trees did not correspond with the agreement in terms of numbers and qualities. [Seller] alleges that [Buyer] did not bring its complaints within the five working days stipulated in article 9 of its general conditions. Finally, [Seller] disputed the amount of the damages requested.

5. ASSESSMENT

On the main claim and the conditional counterclaim:

      [JURISDICTION]

      5.1 On the basis of article 2 of the EEX Regulation, the present court has jurisdiction on the main claim. On the basis of article 6.3 of the EEX Regulation, the present court has jurisdiction on the conditional counterclaim.

      5.2 The main claim and the conditional counterclaim are interdependent and will be assessed jointly below.

      [APPLICABLE LAW]

      5.3 As both Italy and the Netherlands are members to the CISG, the agreement between the parties is governed by the rules of this Convention, pursuant to article 1(1)(a).

      [SUBSTANTIVE ISSUES]

      5.4 In its defense to the main claim, [Buyer] requests a set-off because of the contractual fault by [Seller]. Furthermore, [Buyer] states that [Seller] invoiced a price that is too high for a number of the trees.

      5.5 The following consideration is due in relation to the submission that for a number of trees too high a price was invoiced.

      -    According to the "overview of damages bonetti 2006-2008", produced by [Buyer] as exhibit 4 to its written memorandum, this submission applies to the "Gleditsia Sunburst" and the "Liquidambar styraciflua" delivered on 24 November 2006, the "Platanus Acerifolia" and the "Carpinus betulus fastigiata", delivered on 28 November 2006, the "Quercus fastigiata koster" and the "Koelreuteria paniciculata" delivered on 1 December 2006, the "Platanus Acerifolia" and the "Quercus fastigiata koster", delivered on 11 December 2006 and, finally, the "Platanus Acerifolia" of 20 December 2006.
 
      -    [Buyer] bases its allegation that [Seller] has invoiced too high a price on the Purchase Confirmation [Buyer] had sent on 13 November 2006. According to [Seller], the list "Brienissen ordine totale" exhibits the agreement. It is established that [Buyer] sent the list "Brienissen ordine totale" with its signature to [Seller] on 22 November 2006. This list features the prices to be invoiced per type of tree and per stem size. In a number of occasions, these prices indeed differ from the prices listed in the Purchase Confirmation sent earlier by [Buyer].

However, since [Buyer] signed and sent back the list "Brienissen ordine totale" without any further explanation, which is lacking, it must be accepted that this list contains the prices finally agreed upon. [Buyer]'s defense, i.e., that the invoiced prices by [Seller] were too high, is therefore dismissed.

      5.6 In regard to [Buyer]'s request for a set-off, the following is considered. Between the parties, it is established that the general conditions apply to the agreement. Article 39 of the CISG provides that the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. Pursuant to article 6 of the CISG, the parties may exclude the application of each of the provisions of the Convention. It must therefore be accepted, that article 9 of the general conditions constitutes a deviation from articles 38 and 39 of the CISG, in the sense that the notion of "reasonable time" in article 39 CISG is specified in article 9 of the general conditions as being "five working days from the date of delivery". As a result, [Buyer] had to inspect the trees within this time period.

      5.7 [Buyer] did not argue, nor did it establish on which legal basis, article 9 of the general conditions would lack binding force between the parties. It has submitted that there are no elements from which it would appear that this time period is a limitation period, as it did not take into account the distinction between working and calendar days, and as it does not take into account the visible or latent nature of the defects to the trees or the fact that, for practical reasons, the identified omissions would only be communicated to the seller in a joint reaction after inspection of subsequent deliveries. [Buyer] further submitted that, for these type of orders, a buyer cannot reasonably inspect all trees directly after delivery, especially in case delivery takes place in the middle of the season and the delivered trees must be assembled for a joint delivery to one of [Buyer]'s clients.

      5.8 The difference between working- and calendar days was taken into consideration as article 9 of the general conditions mentions "labour days". [Buyer] did not sufficiently establish that the present case concerned invisible "hidden" defects. The complaints related in general to insufficient stem size, damage to trees, that the roots were too small and that delivery took place at the wrong time and in the wrong order. Consequently, the question as to what extent a reliance on article 9 of the general conditions is possible for hidden defects, does not require an answer in the present case.

      5.9 [Buyer] further submitted that, for practical reasons, it only informed [Seller] of its cumulative complaints after inspection of subsequent deliveries. This choice was, however, made by [Buyer] for its own account. [Seller] was entitled to expect from [Buyer], as is also stipulated in article 38 CISG, that [Buyer] would examine the trees within as short a period as is practicable in the circumstances. The tendency of article 38 CISG as well as of provisions like article 9 of the general conditions is to protect the seller against late or difficult to dispute complaints and to allow him to repair his failure to perform his obligations. In case of moveable goods that, as stated by [Seller] and not sufficiently invalidated by [Buyer], are sensitive to circumstantial factors and are subject to depreciation, this sense requires examination to take place on a short term, and hence, that each delivery must be examined individually. [Buyer] has not made sufficiently clear why it would not be held to such inspection under the present circumstances of this case. It has been established that the trees, after transport arranged for by [Buyer], have arrived at the premises of [Buyer], that [Buyer] has then unloaded the trees and, after re-distribution, has gathered them for further delivery to its client(s). It is not clear why examination of the trees could not have taken place at this occasion. The sole fact, that it concerned a large number of trees, is not sufficient.

      5.10 Finally, [Buyer] has stated that it does not appear from any elements that the time period in article 9 constitutes a limitation period. The court does not follow [Buyer] in its view. A reasonable interpretation of the language of article 9 ("every complaint regarding the amount of or damage to the delivered trees, must be reported by means of a written letter or fax within five working days from the date of delivery. Complaints that were not reported cannot be accepted (regardless of the cause). The buyer will not be compensated in case of loss of profits") leads to a finding that any complaints that would not have been made within five days, could not be accepted. [Buyer] has not reasonably been able to understand this provision any differently than that the buyer loses the right to invoke this in case he would not have brought his complaint within this time period, which also follows from article 39 CISG. In the alternative, article 9 would be superfluous. Consequently, this term must be seen as a further clarification of the terms mentioned in articles 38 and 39 CISG that have not been specified in terms of number of days. The duration of this time period - five working days - is prima facie not unreasonable, as trees are living goods, that are sensitive to circumstantial factors and depreciation, and given the fact that such a time period is also used by [Buyer] in its own general conditions.

      5.11 With regard to the moment of the complaint, [Buyer] has argued in its written memorandum that it complained on 5 December 2006 (letter and fax), 7 December 2006 (fax), 21 December 2006 (letter) and 22 December 2006 (fax). At the hearing, [Buyer] has added that [Buyer] sent pictures of the disapproved trees via e-mail, that it sent registered letters and that the fax dated 5 December 2006 had been sent three times with a different cover page, namely on 1, 5 and 7 December 2006. Furthermore, [Buyer] submitted that it also complained via telephone on 5 December 2006 to give notice that the faxes were forthcoming.

      5.12 [Seller] disputed the statements of [Buyer]. He argued that he did not receive the fax dated 5 December 2006 before 11 December 2006 and has produced a copy of this fax with 11 December mentioned in the data line. Furthermore, he has argued that [Buyer] did not complain about the deliveries of 11 and 22 December 2006 until the fax message of 22 December 2006.

      5.13 Article 27 CISG states that any notice given or made by a party is done by means appropriate in the circumstances, a delay or error in the transmission of the communication or its failure to arrive does not deprive that party of the right to rely on that communication. Fax messages and registered mail are appropriate means, and have been listed as such in article 9 of the general conditions.

      5.14 It is up to [Buyer] to demonstrate that it sent its fax messages and registered letters and when it did so. Up to this point, [Buyer] has not sufficiently supported its statements in this regard with items of evidence. While [Buyer] indeed produced a number of fax messages during the present proceedings, it did not produce the accompanying confirmations of time of sending nor from which fax number these messages were sent. [Buyer] will be given the opportunity to produce such reports in the proceedings. For this purpose, the present case will be sent to the general docket, awaiting action by [Buyer]. Further, [Buyer] produced one proof of registered mail dated 12 December 2006 in the present proceedings. This letter can only relate to the deliveries of 24 and 28 December 2006 and 1 December 2006. From the letter of 22 December 2006, it indeed appears that [Buyer] received the delivery of 11 December 2006 on 13 December 2006. The complaints listed in the registered mail of 2 December were therefore not made in a timely manner - they were not reported within five working days. [Buyer] will also have the opportunity during its action to produce further proof of registered letters, insofar it disposes of such proof. Finally, [Buyer] will be given the opportunity during its action to produce the e-mails (with attachments) that it claims to have sent to [Seller].

      5.15 [Buyer] furthermore alleged that it complained via telephone. Upon appearance, Mr. Van Ham has declared that he had called Giuseppe, a staff member of [Seller], on 5 December 2006 to announce that the fax message with [Buyer]'s complaints was forthcoming. From this contact via telephone no further proof will be requested, as it appears from [Buyer]'s submission that the contents and the nature of the shortcoming were contained in the fax message and hence, that the fax message is to be considered as a complaint in the sense of article 39 CISG and article 9 of the general conditions. That corresponds as well with article 9 of the general conditions, which prescribes the written means fax message and registered letter for the purpose of complaints. The sending of this fax message must therefore be proved.

      5.16 It is confirmed that [Buyer] has complained via its fax dated 22 December 2006 about the deliveries of 11 and 20 December 2006. As far as the delivery of 20 December 2006 is concerned, that was in any case on time. [Seller] has argued in relation to the latter delivery, that [Buyer] nonetheless brought its complaint too late, given the fact that he failed to discuss the complaints at the end of 2007 with [Seller] as had been agreed on 3 October 2007. The court does not follow [Seller] in this last contention. The document of 3 October 2007 does not demonstrate anything more than that the parties have agreed that [Buyer] would pay 30,000 and that [Seller] and [Buyer] would discuss the problems at the end of 2007 in the offices of [Seller] in Italy. This does not imply that [Buyer] would lose all of its rights in case these discussions would not take place.

      5.17 At present, it is confirmed that [Buyer] complained in a timely manner about the delivery of 22 December 2006. It may be established later, that it also complained in a timely manner about prior deliveries. In anticipation, the Court considers the following.

      5.18 [Buyer] has the burden of proof to demonstrate that the trees do not correspond with the agreement. [Buyer] has argued that, as an exception to the general rule, this burden of proof should be reversed and lie on [Seller], as the latter did not at all react to any of its complaints. At present, the Court does not follow this view. In principle, it is the buyer's task to support complaints it has about the delivered goods with elements of proof. [Buyer] has indeed stated to have made pictures of trees and furthermore submitted pictures during the present proceedings. However, without further explanation (which is lacking), it is not clear to which delivery these pictures relate. Once the Court will have passed judgment on the issue of for which deliveries complaints were brought in a timely manner, [Buyer] will have to demonstrate for each relevant delivery which trees did not conform to the agreement and why not, which pictures relate thereto, and what demonstrates that the trees are those delivered by [Seller], and what damage this caused. [Seller] will then be given the option to bring its arguments.

      5.19 All further decisions will be postponed.

[...]


FOOTNOTES

* All translations should be verified by cross-checking against the original text. For purposes of this translation, Plaintiff of Italy is referred to as [Seller] and Defendant of the Netherlands is referred to as [Buyer].

** Maarten Draye, Lic. Jur. (K.U. Leuven), M. Econ. Pol. (K.U. Leuven), LL.M. (Queen Mary, U of London) is a member of the Brussels Bar where he works as an Associate at the law firm of Hanotiau & van den Berg. His practice focuses on both domestic and international commercial litigation and arbitration. Maarten Draye can be contacted at <maarten.draye@hvdb.com>

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