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CISG CASE PRESENTATION

Netherlands 1 March 1995 District Court Zwolle (Wehkamp v. Maglificio Esse)
[Cite as: http://cisgw3.law.pace.edu/cases/950301n2.html]

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


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Case identification

DATE OF DECISION: 19950301 (1 March 1995)

JURISDICTION: Netherlands

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: HA ZA 92-1180

CASE NAME: Wehkamp B.V. v. Maglificio Esse

CASE HISTORY: Partial decision Rb Zwolle 16 March 1994

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Netherlands (plaintiff)

GOODS INVOLVED: Textiles


Case abstract

NETHERLANDS: Rb Zwolle 1 January 1995 and 1 March 1995

Abstract by Franco Ferrari

Facts. The case involves an infringement claim: copyright of a sweater of Olly. Seller produced the sweaters in the fall/winter season 1991-1992. The sales contract clearly referred to Buyer's general terms and conditions. Buyer states that seller is liable for damages buyer suffered according to the general terms and conditions and CISG Articles 42, 45 and 74.

Considerations. Rb Zwolle 1 January 1995. Sections 1341 and 1342 of the Italian Civil Code provide the basis for determining whether the general terms and conditions apply. According to Section 1341, they apply because seller knew or could know that the general terms and conditions existed. There is a question as to whether the exception recited in sentence two of Section 1341 applies. This has to do with the duty to accept the general terms and conditions in writing. The court does not think that was necessary in this case. Also, buyer's claim for extra damages is not unreasonably burdensome as it is not based on an unreasonable term. Seller must pay all damages. Rb Zwolle 16 March 1995. The court is competent according to Section 6(2) EEX. The applicable law cannot be found in the general terms and conditions, as this is the object of the dispute. The rules of Dutch private international law lead to Italian law as the applicable law, because seller has his place of business in Italy and seller provided the characteristic performance. The CISG applies according to its Article 1(1)(b). However, before buyer's claim can be sustained, buyer must prove that seller knew or could not have been unaware that the copyright of Olly existed at the time of the sale.

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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 ; 42 [also cited: Articles 45 ; 74 ]

Classification of issues using UNCITRAL classification code numbers:

4A [Scope of Convention (issues covered): burden of proof];

42A1 [Seller's obligation to deliver goods free from third-party intellectual property claim): seller's knowledge of claim when contract was made (buyer's obligation to prove seller knew or could not have been unaware)]

Descriptors: Intellectual property ; Scope of Convention ; Burden of proof

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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=152&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1996) No. 95; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=152&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 42 para. 29

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Pace Law School Institute of International Commercial Law - Last updated August 15, 2005
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