Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography

CISG CASE PRESENTATION

Netherlands 30 November 1994 District Court Middelburg (Trailerbouw De Kraker v. Heinz van Kempen)
[Cite as: http://cisgw3.law.pace.edu/cases/941130n1.html]

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


Case Table of Contents


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.

Go to Case Table of Contents

Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 57(1)(a) [Also cited: Article 3 ]

Classification of issues using UNCITRAL classification code numbers:

57A [Place for payment: in absence of agreement, payment at seller's place of business]

Descriptors: Payment, place of ; Jurisdiction

Go to Case Table of Contents


Editorial remarks

Go to Case Table of Contents


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=220&step=Abstract>

Italian: [1998] Diritto del Commercio Internazionale 1083-1084 No. 185

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1996) No. 296 [410-411]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=220&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

Go to Case Table of Contents
Pace Law School Institute of International Commercial Law - Last updated May 9, 2002
Comments/Contributions
Go to Database Directory || Go to CISG Table of Contents || Go to Case Search Form || Go to Bibliography