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
DATE OF DECISION:
JURISDICTION:
TRIBUNAL:
JUDGE(S):
CASE NUMBER/DOCKET NUMBER: 334/95/MA
CASE NAME:
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
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.
Go to Case Table of Contents
APPLICATION OF CISG: yes [Articles 1(1)(a) ; 3 ]
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue: Article
Classification of issues using UNCITRAL classification code
numbers:
Descriptors:
(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
UnavailableClassification of issues present
Editorial remarks
Citations to case abstracts, texts, and commentaries
CITATIONS TO ABSTRACTS OF DECISION
Pace Law School Institute of International
Commercial Law - Last updated July 1, 2004