Netherlands 26 February 1992 Appellate Court 's-Hertogenbosch (Melody v. Loffredo, h.o.d.n. Olympic)
[Cite as: http://cisgw3.law.pace.edu/cases/920226n1.html]
Primary source(s) for case presentation: F. De Ly; Michael R. Will; Unilex abstract
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 856/91
CASE NAME:
CASE HISTORY: 1st instance Rb Breda 23 September 1991 [affirming] [CISG overlooked]
SELLER'S COUNTRY: Italy (plaintiff)
BUYER'S COUNTRY: Netherlands (defendant)
GOODS INVOLVED: Shoes
APPLICATION OF CISG: Yes [Article 1(1)(b)]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Articles
Classification of issues using UNCITRAL classification code
numbers:
4A [Scope of Convention (issues covered): estoppel]; 7C22 [Recourse to general principles on which Convention is
based];
39A [Buyer must notify seller of lack of conformity within
reasonable time]
Descriptors:
EDITORS: Franco Ferrari and Albert H. Kritzer
CISG issues ruled upon:
At issue was payment of four invoices during the period February through
May 1991 for the delivery of shoes
by an Italian seller to a Dutch buyer. The CISG was in effect in
Italy, but not in the
Netherlands, at the time of
the conclusion of the contract. In a fax dated 26 July 1991, buyer
promised to make a
conditional payment to
seller. After receipt of three of the four unpaid invoices, buyer gave
seller bank checks which
could not be
cashed by seller as buyer stopped payment on them.
Following a hearing on a proceeding for summary judgment, the Rb Breda (District Court)
stated that
"complaints regarding the quality of the goods have been raised for the
first time. These
cannot be used as an
excuse for blocking payment of the bank checks". Holding that the CISG
is the applicable
law, the Hof 's-Hertogenbosch (District Appeal Court) concurred with this
conclusion. No CISG
provisions are cited in the
opinion.
The District Appeal Court stated, "Italian law is applicable,
as is the CISG to
which Italy has
been a Contracting Party since 1 January 1988." Article 1(1)(b) is the
relevant CISG provision.
Notice of lack of conformity/General principles. The District Court stated,
"By accepting the
deliveries and
providing the checks for payment without complaining promptly, [buyer]
accepted the
deliveries as they were,
as well as the time of delivery. . . . [Buyer] cannot re-open the
discussion based on facts which
were already
known on the date on which the checks were provided." Article 39(1)
would
be a relevant
CISG provision.
Article 7(2) could also be relevant if one regards estoppel as a
general principle of the
Convention.
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=97&step=Abstract>
CITATIONS TO TEXT OF DECISION
Original language (Dutch): Nederlands Internationaal Privaatrecht (NIPR) 1992 No. 374 [635-637]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=97&step=FullText>
Translation: Unavailable
CITATIONS TO COMMENTS ON DECISION English: CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (this case and related cases cited in addendum to opinion)Classification of issues present
Editorial remarks
Citations to case abstracts, texts, and commentaries
CITATIONS TO ABSTRACTS OF DECISION
Pace Law School Institute of International
Commercial Law - Last updated October 20, 2004