CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19930225 (25 February 1993)

JURISDICTION: Netherlands

TRIBUNAL: Rb Arnhem [Rb = Arrondissementsrechtbank = District Court]

JUDGE(S): Van Loo

CASE NUMBER/DOCKET NUMBER: 1992/182

CASE NAME: P.T. Van den Heuvel v. Santini Maglificio Sportivo de Santini P&C S.A.S.

CASE HISTORY: Earlier proceeding Rb Arnhem 26 March 1992 (by default)

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Clothes

Case abstract

Case law on UNCITRAL texts (CLOUT) abstract no. 99

Reproduced with permission from UNCITRAL

The plaintiff, an Italian clothing manufacturer, demanded payment of the purchase price, plus interest, for clothes sold and delivered to the defendant, a Dutch retailer of fashion goods. The defendant sought to set off against the plaintiff's claim its claim for overcharging, for non-conformity of the goods with contract specifications and for damages due to breach of contract by the plaintiff.

The court found that, pursuant to Dutch private international law, CISG was applicable as the law of Italy at the time of the conclusion of the contract (articles 1(1)(b), 100 CISG). The court allowed set off in respect of the defendant's claim for overcharging and non-conformity on the grounds that neither party had contested the invoices of the other party. However, with regard to the claim for damages, the court held that set off was not settled by the Convention and, applying Italian law, rejected it.

The court found that the defendant had defaulted in the paying of the purchase price, and ordered the defendant to pay the balance of the purchase price plus interest (78 CISG).

Editorial remarks

EDITORS: Franco Ferrari and Albert H. Kritzer

CISG held applicable based on date of transaction (Article 100) and pursuant to Article 1(1)(b): private international law points to a Contracting State.

Issues ruled upon:

Scope of CISG. Case involves disputes under a frame contract (similar to a distributorship agreement) and under contracts for goods ordered and delivered under that frame contract. The former disputes were held to be governed by the applicable domestic law; the latter disputes were held to fall within the scope of the CISG.

Gap-filling by domestic law/Set-off. Buyer invoked a counterclaim, referred to as a clearance between two debts of money. The court stated that "[t]he question whether this counterclaim can be considered concerns a subject that is not governed by the CISG. Therefore, it must be resolved under [the applicable] domestic law."

Interest. CISG Article 78 is mentioned as authorizing interest, but the opinion does not interpret Article 78.

Citations to other abstracts, case texts and commentaries