CISG CASE PRESENTATION

Case identification

DATE OF DECISION: 19941130 (30 November 1994)

JURISDICTION: Netherlands

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 588/93

CASE NAME: Trailerbouw De Kraker BV v. Heinz van Kempen, h.o.d.n.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (plaintiff)

BUYER'S COUNTRY: Germany (defendant)

GOODS INVOLVED: Trailer

Case abstract

NETHERLANDS: Rb Middelburg 30 November 1994

Abstract by Franco Ferrari

Facts. By letter dated 11 November 1992, seller sent an offer to buyer. The object of sale was a so-called "Kraker-Leichtbau Sattelauflieger mit Walking-Floor Boden". In seller's offer the place where the goods had to be picked up was "Fabrik Axel" [Netherlands], and the time for payment, "Sofort nach Fertigmeldung". On 12 November 1992, buyer responded suggesting that the goods be left at "TÜV-Stelle" [Germany]. On 16 November 1992 seller renewed his offer to buyer; seller's terms were the same as stated in his letter dated 11 November 1992. Both of seller's offers contained a notification of the applicability of the "FOCWA-general terms and conditions". Several letters were thereafter exchanged to regulate the transfer and the time of delivery. On 1 April 1993 the trailer was examined in Mönchen-Gladbach [Germany]. There were some shortcomings that seller repaired. Buyer protested. By letter dated 18 May 1993, buyer complained that delivery had been due a long time ago. Buyer also stated that the roof construction was of bad quality. Seller now claims payment of the purchase price and the costs that are a consequence of this lawsuit. Buyer states that the Dutch court has no jurisdiction and claims that the contract should be dissolved. Seller responds, calling attention to the choice-of-forum clause in the general terms and conditions.

Considerations. The choice-of-forum clause in the general terms and conditions is not valid because the general terms and conditions are in a language other than the language of the buyer. Also, the general terms and conditions were not handed over with the sales contract. Section 17 EEX is not satisfied. The underlying obligation is seller's claim for payment. According to Section 5 EEX, the competent forum is at the place where the obligation must be performed. The parties, however, have not agreed on such a place. The applicable law must point out the correct place. The characteristic performance is provided by seller, therefore Dutch law applies. The CISG applies as well, as it is a part of Dutch law. Article 57 CISG states where the price must be paid. This and other facts lead to Axel [Netherlands] as the place of payment. The Dutch court has jurisdiction. The court gives the parties leave to adapt their demands, as now the CISG is applicable.

Editorial remarks

• Unavailable

Citations to case abstracts, texts, and commentaries

(a) UNCITRAL abstract: Unavailable

(b) Other abstracts