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CISG CASE PRESENTATION

Netherlands 26 September 1997 Supreme Court (M.J.M. Productions v. Tissage Mécanique)
[Cite as: http://cisgw3.law.pace.edu/cases/970926n1.html]

Primary source(s) for case presentation: UNCITRAL abstract; Unilex abstract

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Case identification

DATE OF DECISIONS: 19970926 (26 September 1997)

JURISDICTION: Netherlands

TRIBUNAL: HR [= Hoge Raad = Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16.253

CASE NAME: M.J.H.M. Foppen (h.o.d.n. Productions) v. Tissage Impression Mécanique TIM S.A.

CASE HISTORY: 1st instance Rb Maastricht (5182/1994) 26 January 1995; 2d instance Hof 's-Hertogenbosch 9 October 1995 [affirmed]

SELLER'S COUNTRY: France [defendant]

BUYER'S COUNTRY: Netherlands [plaintiff]

GOODS INVOLVED: Fabrics


Case abstract

NETHERLANDS: Hoge Raad [Supreme Court] 26 September 1997

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/81],
CLOUT abstract no. 834

Reproduced with permission of UNCITRAL

Abstract prepared by Jan Smits, National Correspondent, and Bas Megens

In July 1993, a Dutch entrepreneur bought fabric from a French company to be used in its company. The seller confirmed the order and delivered the fabric to the buyer in August 1993. This latter subsequently discovered that the fabric did not conform to the contract, since it lacked sufficient elasticity. The buyer thus filed a claim with the Court of First Instance of Maastricht (NL) arguing that the seller had committed a breach of contract.

The Supreme Court concurred with the Court of Appeals that the CISG applied to the case. Before the Court of First Instance of Maastricht, the seller had argued that that Court lacked jurisdiction over the case, invoking articles 5(1) and 17 of the Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters, 27 September 1968 (hereinafter "the Brussels Convention"), but the Court decided it did have jurisdiction. On appeal, the Court of Appeals overturned the Court of First Instance's decision, stating, first, that it was evident from the contract of sale that the seller was under an obligation to deliver the fabric to the place of business of the buyer in the Netherlands and that therefore the contract of sale included the transport of the fabrics. Second, in that case the obligation of the seller according to article 31(a) CISG consisted of handing the goods over to the first carrier for transmission to the buyer. Third, since the fabric was handed over to the carrier at the seller's place of business in Lyon (in France), Lyon was the place where the contract had been performed and, fourth, as a result, the Court of First Instance of Maastricht could not have jurisdiction under article 5(1) Brussels Convention, since in a case like the one at issue the place of performance of a contractual obligation must be the place where the contractual obligation which was not performed should have been performed.

On appeal to the Supreme Court, the buyer argued that article 31(a) CISG does not apply to the present case, since the Court of Appeal's reasoning indicates that the seller was under an obligation to deliver the fabric to the buyer's place of business in Maastricht, while article 31(a) CISG covers only the situation in which the seller is not under an obligation to deliver the goods to any other predetermined place. The Supreme Court rejected the appeal on the grounds that it was clear from the Court of Appeal's reasoning that that Court -- notwithstanding its use of the terms "deliver the fabric to the place of business" -- did not consider the present case as one to which the first sentence of art. 31 CISG in which the seller is under an obligation to deliver the goods to any other predetermined place, could be referred to. The case at hand was merely a case as referred to in 31(a) CISG in which the contract of sale includes the transmission of the goods in question.

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Classification of issues present

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

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issues: Article 31 [Also cited: Article 3 ]

Classification of issues using UNCITRAL classification code numbers:

31A1 [Place for delivery (contracts involving carriage of goods): obligation to hand goods to first carrier]

Descriptors: Jurisdiction ; Delivery

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

English: [1997] Netherlands International Law Review 421-422; Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=319&step=Abstract>

CITATIONS TO TEXT OF DECISION

Original language (Dutch): [1997] 15 Nederlands International Privaatrecht (NIPR) No. 359 [453-454]; [1997] Nederlands Juristenblatz (NJB) 1726-1727; [1997] Rechtspraak van de Week (RvdW) 181; [1998] Nederlandse Jurisprudentie (NJ) No. 691 [3980-3985]; Unilex database [excerpt] <http://www.unilex.info/case.cfm?pid=1&do=case&id=319&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

Dutch: De Boer, [1998] Nederlandse Jurisprudentie No. 691 [3985-3986]; Koppenol-Laforce, [1998] Nederlands Tijdschrift voor Burgerlijk Recht (NTBR) 45-48

English: Vlas, [1997] Netherland International Law Review 421-425; [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 57; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 31 para. 92

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