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CISG CASE PRESENTATION

Netherlands 25 January 1995 District Court Middelburg (CL Eurofactors v. Brugse Import- en Exportmaatschappij)
[Cite as: http://cisgw3.law.pace.edu/cases/950125n1.html]

Primary source(s) for case presentation: Case abstract; case comment


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Case identification

DATE OF DECISION: 19950125 (25 January 1995)

JURISDICTION: Netherlands

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 300/94

CASE NAME: CL Eurofactors BV v. Brugse Import- en Exportmaatschappij

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Netherlands (plaintiff is seller's assignee)

BUYER'S COUNTRY: Belgium (defendant)

GOODS INVOLVED: Beef


Case abstract

NETHERLANDS: Rb Middelburg 25 January 1995

Abstract by Franco Ferrari

Facts. Seller sold and delivered a consignment of beef to buyer. The account was not paid by buyer. Seller has assigned the account to CL Eurofactors [Netherlands].

Considerations. Dutch law applies, even when the general terms and onditions, which contain a choice-of-forum clause, are not applicable. According to Section 4 of the Rome Convention, as seller provides the characteristic performance, the law of his country has the closest connection to the sales contract. Therefore, Dutch law applies. Article 7 CISG leads to the assumption that the interpretation of the CISG needs to be done according to Dutch law. Section 5(1) EEX states that the court is competent when the place of payment is within its jurisdiction. According to Article 57 CISG, the payment must take place at Hulst [Netherlands]. The Dutch court is therefore competent. The general terms and conditions are not applicable according to Dutch law and the CISG. The CISG does not have a provision on set-off rights. Dutch law is used to fill this gap. Section 6:163 BW rejects buyer's set-off claim. The obligation to pay is not proved sufficiently. Buyer's claim is dismissed.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 4 ; 7 ; 57

Classification of issues using UNCITRAL classification code numbers:

4B3 [Issues excluded: set-off];

7C23 [Interpretation of Convention: gap-filling by domestic law (set-off rights)];

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

Descriptors: Scope of Convention; Set-off ; Gap-filling ; Payment, place of ; Jurisdiction

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Editorial remarks

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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=153&step=Abstract>

Italian: Diritto del Commercio Internazionale (1997) 730 No. 141

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1996) No. 127 [196-197]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=153&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Papandréou-Deterville, English translation of Dalloz case comment cited below [text presented below]; Ferrari, International Legal Forum (4/1998) 138-255 [226 n.792 (scope of CISG: set-off issues)]

French: Papandréou-Deterville, Dalloz Sirey (1997) 223-224

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Case comment

Translation of comment published in Dalloz Sirey (1997) 223-224

District Court (Arrondissementsrechtbank) Middelburg 25 January1995
CL Eurofactors BV vs. Brugse Import- en Exportmaatschappij

Case comment by Marie-France Papandréou-Deterville
Maître de conferences, Université de Strasbourg

Translation by Annabel V. Teiling

[]

The District Court of Middelburg reviewed a contract regarding beef meat, concluded between a company established in the Netherlands and a buyer established in Belgium. The Plaintiff, seller's assignee, sued the buyer for payment of the price. The buyer filed a set-off counterclaim for damages. The Tribunal believes that the contract is governed by the law of the Netherlands, law of the State with which the contract has the closest connection (Rome Convention, article 4). The application of the CISG is therefore completed (article 1(1)(b) and in conformity with article 7 of the CISG by the rules of law of the Netherlands. Furthermore, the Tribunal believes that it is competent in accordance with article 5-1 of the Brussels Convention of 1968 as a jurisdiction where the obligation of payment disputed has been or must be executed. In conformity with article 57 of the CISG, the payment must be made at the place of domicile of the seller. Many other decisions from the Netherlands have thus had recourse to the Vienna Convention to determine the competent Tribunal according to article 5-1 of the Brussels Conventions (Gerechtshof's-Hertogenbosch) (Court of Appeals of Bois-le-Duc), 26 October 1994, NIPR 1995, no. 266; 9 October 1995, NIPR 1996, no. 18). As for buyer's claim, the Tribunal of Middelburg states that it is solved by none of the clauses of the Vienna Convention, so that it must be decided by the applicable law of the contract, the law of the Netherlands, which states that the damages are not to be accorded.

The buyer's claim is a matter excluded from the field of application of the Convention. Instead of referring to article 7 CISG, the Middelburg Court should have, we believe, used article 4 CISG. Thus, the applicable law imposed itself without any preliminary research of a general principle. Indeed, if a question is not governed by the Convention, "it is outside the scope of the technique of filling gaps in accordance with article 7." (J Honnold, op. cit., no. 98).

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Pace Law School Institute of International Commercial Law - Last updated August 12, 2003
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