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CISG CASE PRESENTATION

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


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Case identification

DATE OF DECISION: 19920226 (26 February 1992)

JURISDICTION: Netherlands

TRIBUNAL: Hof 's-Hertogenbosch [Hof = Gerechtshof = District Appeal Court]

JUDGE(S): Wachter, Schlingemann-Vermeulen, De Vos

CASE NUMBER/DOCKET NUMBER: 856/91

CASE NAME: Melody BV v. Loffredo, h.o.d.n. Olympic

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


Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7(2) ; 39(1)

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: Lack of conformity notice, timeliness ; Scope of Convention ; General principles ; Estoppel

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Editorial remarks

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.

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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=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)

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Pace Law School Institute of International Commercial Law - Last updated October 20, 2004
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