CISG CASE PRESENTATION

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 abstract

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).

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."

Citations to other abstracts, case texts and commentaries