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CISG CASE PRESENTATION

Netherlands 20 February 1998 Supreme Court (Bronneberg v. Belvédère)
[Cite as: http://cisgw3.law.pace.edu/cases/980220n1.html]

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

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Case identification

DATE OF DECISIONS: 19980220 (20 February 1998)

JURISDICTION: Netherlands

TRIBUNAL: HR [= Hoge Raad = Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: 16.442

CASE NAME: W.M.J.M. Bronneberg v. Ceramica Belvédère S.p.A.

CASE HISTORY: 1st instance Rb 's-Hertogenbosch 4 February 1994 [affirmed], 2d instance Hof 's-Hertogenbosch 20 May 1996 [affirmed]

SELLER'S COUNTRY: Italy (plaintiff)

BUYER'S COUNTRY: Netherlands (defendant)

GOODS INVOLVED: Floor tiles


Case abstract

NETHERLANDS: Hoge Raad [Supreme Court] 20 February 1998

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/81],
CLOUT abstract no. 833

Reproduced with permission of UNCITRAL

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

An Italian company sold a batch of tiles to a Dutch buyer and delivered them immediately. The buyer did not pay the invoice, claiming that the seller had breached the contract on the ground that the tiles were not of the quality required by the contract (since the glazing of the tiles had already worn off) and that upon sale of these tiles to a third party, this latter had suffered damages. Italian law applied to the contract, meaning that the dispute had to be adjudicated by reference to the CISG.

Both the Court of First Instance and the Court of Appeal determined that since the buyer was informed by its customer that they did not conform to the contract in July 1991, but did not inform the seller of their lack of conformity until November of that year, it had failed to give notice to the seller of the lack of conformity of the tiles within a reasonable time of discovery, as required by article 39(1) CISG. Its claim must thus be denied. On appeal to the Supreme Court, the buyer argued that the "reasonable period" as referred to in article 39(1) CISG should only commence at that point in time at which it was capable of ascertaining the lack of conformity of the delivered goods itself. This was not in July, but when it had an opportunity to ascertain whether or not the lack of conformity complained of by its customer actually existed.

The Supreme Court rejected the appeal, pursuant to article 38(1) CISG which determines that "[t]he buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances". In that sense the Court of Appeals did not err in determining that the buyer should not have postponed the inspection of the tiles after being made aware of their lack of conformity by its customer. The Court of Appeals did not err even in affirming that the buyer should not have postponed informing the seller of the alleged lack of conformity, if necessary accompanied by a statement conveying its own doubts about the existence of the defects. The Supreme Court also confirmed the Court of Appeals' reasoning that a period of time of "not even four months" did not constitute a "reasonable period" in the sense of article 39(1) CISG to give notice of the lack of conformity in question (the wearing off of the glazing of the tiles), notwithstanding the buyer's argument that the existence of such a lack of conformity could only be determined after a certain period of time.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issues: Articles 38(1) ; 39(1) ; 59 ; 78 [Also cited: Article 44 ]

Classification of issues using UNCITRAL classification code numbers:

38A [Buyer's obligation to examine goods as soon as practicable in the circumstances];

39A [Requirement to notify seller of lack of conformity: buyer must notify seller within reasonable time; degree of specificity required];

59B [Payment due at time fixed or determinable by contract or Convention without need for request or other formality];

78A [Interest on delay in receiving price: rate determined pursuant to domestic law]

Descriptors: Examination of goods ; Lack of conformity notice, timeliness ; Lack of conformity notice, specificity ; Price ; Interest

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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: Unilex database <http://www.unilex.info/case.cfm?pid=1&do=case&id=328&step=Abstract>

German: [1999] Schweizerische Zeitschrift für internationales und europäisches Recht 202-203

CITATIONS TO TEXT OF DECISION

Original language (Dutch):[1998] 16 Nederlands International Privaatrecht (NIPR) No. 214 [246-247]; [1998] Nederlands Jurisprudentie (NJ) No. 480 [2718-2726]; [1998] Nederlands Juristenblatz (NJB) 566-567; Unilex database [excerpt] <http://www.unilex.info/case.cfm?pid=1&do=case&id=328&step=FullText>

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed., Kluwer (2003) § 4-9 n.149; Larry A. DiMatteo et al., 34 Northwestern Journal of International Law & Business (Winter 2004) 299-440 at nn.405, 585; CISG-AC advisory opinion on Examination of the Goods and Notice of Non-Conformity [7 June 2004] (cases cited in addendum to opinion); [2004] S.A. Kruisinga, (Non-)conformity in the 1980 UN Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 78, 119, 120; [2005] Schlechtriem & Schwenzer ed., Commentary on UN Convention on International Sale of Goods, 2d (English) ed., Oxford University Press, Art. 39 para. 6

French: Papandréou-Deterville, Recueil Dalloz (1998) 313-314

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Pace Law School Institute of International Commercial Law - Last updated January 16, 2009
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