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CISG CASE PRESENTATION

Netherlands 5 January 1978 Appellate Court Amsterdam (Amran v. Tesa) [ULIS precedent] [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/780105n1.html]

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

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Case identification

DATE OF DECISIONS: 19780105 (5 January 1978)

JURISDICTION: Netherlands

TRIBUNAL: Hof Amsterdam [Hof = Gerechtshof = District Appeal Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Amran v. Tesa

CASE HISTORY: 1st instance Rb Amsterdam 27 October 1976

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Netherland (plaintiff)

GOODS INVOLVED: Gold and jewelry


Classification of issues present

APPLICATION OF CISG: No, this is a ULIS case that can be regarded as a CISG precedent

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 7

Classification of issues using UNCITRAL classification code numbers:

7A33 ; 7C221 [Application of good faith standards; Recourse to general principles on which Convention is based: behavior of a reasonable person]

Descriptors: General principles ; Reasonableness ; Good faith

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Editorial remarks

EDITOR: Albert H. Kritzer

This is a ULIS case. The logic for considering ULIS case law as aids to interpreting the CISG is: Where a concept "has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it." F.A. Mann, 99 Law Quarterly Review (1983) 382-383 [citations omitted].

In Amran v. Tesa the court states: "[I]n ULIS one finds in Articles 10, 11, 22, 26(1), 26(4), 37, 42(2), 61(2), 74, 88 and 91 the expressions 'reasonable', 'unreasonable' and 'reasonably'. 'Reasonableness' is therefore one of the 'general principles' by which, in accordance with Article 17 ULIS, questions not expressly settled in the uniform sales law shall be answered."

Schlechtriem provides the CISG point of comparison: citing the numerous references to reasonableness in the CISG ["Arts. 46(3) sentences 1 and 2, 49(2), 63(1), 65(2), 72(1), 73(2), 73, 77, 79(1), 85 sentence 1, 87, 88(1), 88(2) and 88(3)"], he states that "the rule that the parties must conduct themselves according to the standard of the 'reasonable person' . . . must be regarded as a general principle of the Convention." Peter Schlechtriem, "Uniform Sales Law" (Vienna: Manz 1986) 39, 22 n.41. References to reasonableness may also be found in Arts. 8(2) and (3), 16(2)(b), 18(2), 25, 33(c), 34, 35(1)(b), 37, 38(3), 39(1), 35(1), 47(1), 48(1) and (2), 60(a), 64(2)(b), 72(2), 76(2), 79(4) and 86(1). For extrapolations of the concept of the "reasonable person" to still other parts of the Convention, see Frans J.A. van der Velden, "The Law of International Sales: The Hague Conventions 1964 and the UNCITRAL Uniform Sales Code 1980 - Some Main Items Compared", in: Voskuil & Wade eds., Hague-Zagreb Essays 4 on the Law of International Trade (The Hague: Nijhoff 1983) 59.

In Amran v. Tesa, the Gerechtshof Amsterdam honored Bonell's and Honnold's precepts by referring to national laws with which the respective litigants were familiar -- "buona fede" in art. 1375 of the Italian Code Civil and "goede trow" (good faith) in art 1374 of the Dutch Civil Code -- as well as relevant provisions of the uniform sales law.

The essence of our editorial remarks is: Amran v. Tesa is a good model for CISG jurists to consider.

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Citations to case abstracts, texts, and commentaries

CITATIONS TO ABSTRACTS OF DECISION

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Ship en Schade (1978) No. 79, 219-222

Translation: (English): Text presented below

CITATIONS TO COMMENTS ON DECISION

English: Van der Velden, Indications of the Interpretation by Dutch Courts of the United Nations Convention on Contracts for the International Sale of Goods 1980, in: Gerver/Hondius/Steenhoff eds., Netherlands Reports to the Twelfth International Congress of Comparative Law - Sydney/Melbourne 1980 (The Hague: Asser Instituut/Nijhoff 1987) 44 n.42

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Case text (English translation)

Amran v. Tesa
Gerechtshof Amsterdam 5 January 1978

Translation by Harm Jan de Kluiver

Facts of the case

Tesa, an Italian firm, sold gold and jewelry to Amran, a Dutch firm based in Amsterdam. The terms were "cash against documents". Amran was to make payment to the Amrobank Ansterdam, Tesa's agent. The goods were shipped to Amsterdam by plane on 9 November 1973. Three days later the documents were offered to Amrobank by Tesa's forwarding agent. Amran did not pay. On 8 January 1974 the forwarding agent advised the bank that if Amran has not yet paid, Tesa orders the return of all documents and goods. On 22 January the bank replied that Amran intends to pay "tomorrow" and requests to be notified "whether you agree with this payment so that we may deliver the goods". In reply, Tesa again ordered the bank to return the documents and goods. The bank and the forwarding agent therefore refused to accept payment by Amran. Amram brought this action before the Amsterdam District Court and, after denial of its claim, this appeal before the Amsterdam Court of Appeals.

Judgment

The Court of Appeals observes that the decisive issues in this case are whether the deferral of payment is imputable to Amram and, if so, whether Tesa was justified in avoiding the contract. The term "C.A.D." (cash against documents), in and of itself, cannot be construed as implying immediate payment. It is therefore necessary to determine when payment was due and whether payment on 24 January was still within the terms of the contract. ULIS, the governing law, does not provide an immediate answer to this question.

However, in ULIS one finds in Articles 10, 11, 22, 26(1), 26(4), 37, 42(2), 61(2), 74, 88 and 91 the expressions "reasonable", "unreasonable" and "reasonably". "Reasonableness" is therefore one of the "general principles" by which, in accordance with Article 17 questions not expressly settled in the uniform sales law shall be answered. The Court assumes that this "reasonableness" is of the same character as "buona fede" in art. 1375 of the Italian Code Civil and "goede trouw" (good faith) in art. 1374 of the Dutch Civil Code, according to which a contract has to be executed in good faith. [Translator's note: The Dutch Code was replaced by a new Code in 1992. Art. 6:248 of this new Code, however, also adopts the principle of "reasonableness and fairness").]

The Court of Appeals holds that Amran did not pay for a period of two months and should have interpreted the letter of 8 January 1974 as demanding "payment immediately". Under the circumstances, the Court is of the opinion that this is "reasonable", taking into account that Amran, without any justification, did not pay for valuable goods during such a period of time. This, in the opinion of the Court, is surely contrary to "reasonableness". The Court holds that Amran was in default by not paying immediately when informed of the letter of Tesa of 8 January 1974. The Court grants Tesa the opportunity to prove that Amran indeed was informed of the letter of 8 January that Tesa sent to Amrobank (which Amran denied).

* All translations should be verified by cross-checking against the original text.

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Pace Law School Institute of International Commercial Law - Last updated February 6, 2002
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