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CISG CASE PRESENTATION

Netherlands 9 October 1995 Appellate Court 's-Hertogenbosch (Tissage Impression Mecanique v. Foppen)
Cite as: http://cisgw3.law.pace.edu/cases/951009n1.html]

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


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Case identification

DATE OF DECISION: 19951009 (9 October 1995)

JURISDICTION: Netherlands

TRIBUNAL: Hof 's-Hertogenbosch [Hof = Gerechtshof = District Appeal Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 334/95/MA

CASE NAME: Tissage Impression Mecanique J.J.M. S.A. v. M.J.H.M. Foppen

CASE HISTORY: 1st instance RB Maastricht (5182/1994) 26 January 1995 [reversed]; 3d instance Hoge Raad 26 September 1997 [affirming reversal]

SELLER'S COUNTRY: Netherlands (defendant)

BUYER'S COUNTRY: France (plaintiff)

GOODS INVOLVED: Cloth


Case abstract

NETHERLANDS: Hof '-Hertogenbosch 9 October 1995

Abstract by Franco Ferrari

Facts. Buyer has his domicile in the Netherlands and summoned seller, of Lyon, France, to appear before the court. Buyer claims damages from seller because the fabric seller delivered was not in conformity with the contract. Seller states that a Dutch court has no jurisdiction according to Sections 5(1) and 17 EEX. In seller's general terms and conditions was a choice-of-forum clause. The Rb Maastricht held itself compentent. Seller appeals now at the Gerechtshof.

Considerations. The CISG applies because both France and the Netherlands became Contracting States on 1 January 1992. The CISG applies according to its Articles 1 and 3. According to Section 5(1) EEX, a Dutch court has no jurisdiction in this case. Article 31(a) CISG states that the duty to deliver goods consists, in this case, in the handing over of the goods to the first carrier. As it is assumed that the delivery in this sense took place at the factory of seller in Lyon [France], Lyon is the place where the obligation had to be performed and was performed. The Rb Maastricht had no jurisdiction. According to HvJEG 6 October 1976, NJ 1977, 170, the place where the breach of contract took place must be the starting point for a damages claim.

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Classification of issues present

APPLICATION OF CISG: yes [Articles 1(1)(a) ; 3 ]

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 31(a) [Also cited: Articles 1(1)(a) ; 3 ] [Also relevant: Articles 45 ; 57 ]

Classification of issues using UNCITRAL classification code numbers:

31A1 [Delivery of the goods, place for delivery: contracts involving carriage of goods, obligation to hand goods to first carrier]

Descriptors: Delivery ; Carriage of goods ; 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=144&step=Abstract>

Italian: [1997] Diritto del Commercio Internazionale 750 No. 165

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1996) No. 118 [187-188], Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=144&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Unavailable

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Pace Law School Institute of International Commercial Law - Last updated July 1, 2004
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