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CISG CASE PRESENTATION

Netherlands 30 December 1993 District Court Arnhem (Nieuwenhoven Veehandel v. Diepeveen)
[Cite as: http://cisgw3.law.pace.edu/cases/931230n1.html]

Primary source(s) for case presentation: F. De Ly; Michael R. Will; UNCITRAL abstract; Unilex abstract


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Case identification

DATE OF DECISION: 19931230 (30 December 1993)

JURISDICTION: Netherlands

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

JUDGE(S): Van Driel van Wageningen

CASE NUMBER/DOCKET NUMBER: 1992/1251

CASE NAME: Nieuwenhoven Veehandel GmbH v. Diepeveen BV

CASE HISTORY: 2d instance Hof Arnhem 22 August 1995

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Live lambs


Case abstract

NETHERLANDS: Rb Arnhem 30 December 1993

Case law on UNCITRAL texts (CLOUT) abstract no. 100

Reproduced with permission from UNCITRAL

The seller, a German company, sued the buyer, a Dutch company, demanding payment of the purchase price for a consignment of live lambs sold and delivered to the buyer, plus interest. The buyer argued that the contract was avoided on the ground that the lambs were not ready to be slaughtered.

The court found that CISG was applicable pursuant to Dutch private international law as the law of Germany in force at the time of the conclusion of the contract (art. 1(1)(b) CISG). With regard to the fact that the lambs were not ready for slaughter, the court found that this was irrelevant, since according to the contract only the weight of the lambs had to be measured and that was found to be in conformity with the contract. The court awarded the full purchase price to the seller plus interest. It was held that it was reasonable for the court to apply German law in order to determine the rate of interest, which was not settled in the CISG, since the parties had agreed for payment of the price in German currency and, in any event, German law was applicable pursuant to Dutch private international law (art. 78 CISG).

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7(2) ; 78 [Also cited: Article 8 ]

Classification of issues using UNCITRAL classification code numbers:

4A ; 4B [Scope of CISG: issues covered; Issues excluded];

7C231 [Gap-filling by domestic law: recourse to domestic law selected by private international law];

78B [Interest on delay in receiving price or any other sum in arrears: rate of interest]

Descriptors: Penalty clauses ; Scope of Convention ; Interest

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Editorial remarks

EDITORS: Franco Ferrari and Albert H. Kritzer

Buyer (Netherlands) contracted for the purchase of live lambs from seller (Germany) at a time when the CISG was in effect in both countries. The contract did not specify the governing law. The court held that the contract is governed by German law and that the CISG applies pursuant to Article 1(1).

CISG issues ruled upon:

Penalty clauses/Scope of CISG/Gap-filling. The contract contained a penalty clause in the event of late payment. Seller delivered the lambs to buyer on 18 May 1992. Buyer resisted payment on the grounds that "the agreed weight was insufficient". Without further discussion of the facts and issues, the court ruled that buyer is obligated to pay the contract price and the fixed penalty.

Interest, rate of. The opinion states: "[Seller] also claimed interest is due according to CISG Article 78. Because the rate of interest has not been arranged in the CISG, a rate of interest should be paid in a reasonable amount according to German law, Section 288 BGB (4%)". The basis of this conclusion is said to be "because the payment has been agreed in German currency and moreover, besides the CISG, German law is applicable."

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=61&step=Abstract>; Forum des Internationalen Rechts/ The International Legal Forum [English Language Edition] 1 (1996) 210

French: Revue de Droit des Affaires Internationales (1995) 1014-1015 [CLOUT abstract]

German: Forum 1 (1996)10

Italian: Diritto del Commercio Internazionale (1995) 453 no. 73

Polish: Hermanowski/Jastrzebski, Konwencja Narodow Zjednoczonych o umowach miedzynarodowej sprzedazy towarow (Konwencja wiedenska) - Komentarz (1997) 261-262

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (NIPR) 1994, No. 268 [339-340]; Unilex database [excerpt] <http://www.unilex.info/case.cfm?pid=1&do=case&id=61&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Ferrari, International Legal Forum (4/1998) 138-255 [253 n.1079 (interest issues)]; Behr, 17 Journal of Law and Commerce (1998) 266-288 [abstracts and comments on 29 interest rulings from 10 countries (this case presented at 277)]; Liu Chengwei, Recovery of interest (November 2003) n.239; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at n.92

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Pace Law School Institute of International Commercial Law - Last updated September 17, 2004
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