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CISG CASE PRESENTATION

Netherlands 24 April 1996 Appellate Court 's-Hertogenbosch (Peters v. Kulmbacher Spinnerei Produktions)
[Cite as: http://cisgw3.law.pace.edu/cases/960424n1.html]

Primary source(s) for case presentation: Michael R. Will


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Case identification

DATE OF DECISION: 19960424 (24 April 1996)

JURISDICTION: Netherlands

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

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 456/95/He

CASE NAME: E.H.T.M. Peters v. Kulmbacher Spinnerei GmbH & Co. Produktions KG

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Germany (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Yarn


Case abstract

NETHERLANDS: Hof '-Hertogenbosch 24 April 1996

Abstract by Franco Ferrari

Facts. Seller has sold and delivered yarn to buyer. Buyer has not paid the purchase price, a total of DM 45,457.39. Seller now claims payment of the amount and interest on several grounds: first, 4% interest (rate Deutsche Bundesbank) from 1 October 1993 until the day the amount is paid; second, the amount and the interest that is meant in Article 78 CISG from 22 August 1993 until the amount is paid. Buyer contests the applicability of seller's general terms and conditions. Buyer also alleges that the first order was delivered too late and claims damages. The Rb sustained seller's claim, regarding seller's general terms and conditions applicable because seller and buyer had already done business in 1992 and buyer could have known the terms.

Considerations. Seller and buyer concluded their sales contract on 15 April 1993. Seller provides the characteristic performance and has his place of business in Germany. Therefore, German law applies. The CISG is a part of German law and applies as well. The place where the contract was concluded is not easily determined. However, this has no further consequences. Buyer is an international entrepreneur, so he should be aware of the fact that general terms and conditions are a common feature in international practice. With regard to the decision of the Rb, the general conditions are a part of the sales contract. The first interest claim must be diminished, as the rate was lowered to 3.5% in July 1993. The contractual interest rate is diminished to 7.5%, which cannot be regarded as an unreasonable clause. None of the general terms and conditions can be regarded as unreasonably burensome.

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Classification of issues present

APPLICATION OF CISG: Yes, Court also concluded no difference in results whether CISG, German domestic Law or Dutch domestic law applied

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Articles 9 ; 78 [Also relevant: Article 18 ]

Classification of issues using UNCITRAL classification code numbers:

9D1 [Parties bound by applicable usages and practices (court's basis for enforcing standard terms as part of the contract and rate of interest recited therein)];

78B [Interest on delay in receiving price: rate of interest (contract rate applied)]

Descriptors: Standard terms and conditions ; Usages and practices ; Interest

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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=224&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1996) No. 235 [323-325]; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=224&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Honnold, Uniform Law for International Sales (1999) 129 [Art. 9 (standards for usage)]; Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 2-13 n.203; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 9 paras. 8, 18, 19; Henschel, The Conformity of Goods in International Sales, Forlaget Thomson (2005) 85

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Pace Law School Institute of International Commercial Law - Last updated December 5, 2005
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