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CISG CASE PRESENTATION

Netherlands 21 May 1999 Supreme Court (Bressers Metaal B.V. v. La Metallifera S.p.A.)
[Cite as: http://cisgw3.law.pace.edu/cases/990521n1.html]

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

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Case identification

DATE OF DECISION: 19990521 (21 May 1999)

JURISDICTION: Netherlands

TRIBUNAL: HR [ = Hoge Raad = Supreme Court]

JUDGE(S): Unavailable

CASE NUMBER/DOCKET NUMBER: Unavailable

CASE NAME: Bressers Metaal B.V. v. La Metallifera S.p.A.

CASE HISTORY: Unavailable

SELLER'S COUNTRY: Italy (defendant)

BUYER'S COUNTRY: Netherlands (plaintiff)

GOODS INVOLVED: Steel pipes


Case abstract

NETHERLANDS: Hoge Raad [Supreme Court] 21 May 1999

Case law on UNCITRAL texts [A/CN.9/SER.C/ABSTRACTS/81],
CLOUT abstract no. 832

Reproduced with permission of UNCITRAL

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

A Dutch company bought a batch of welded pipes from an Italian company. A confirmation of the order was sent by the seller and contained the provision "Delivery to VTI Horst in () Horst [NL]". The buyer subsequently rescinded the contract on the basis that the pipes did not meet the required standard, and summoned the seller before the Court of First Instance of Breda (in the Netherlands), claiming repayment of the purchase price and compensation for future damages. The seller claimed the Court of Breda had no jurisdiction.

The Court decided that the Court of First Instance of Roermond (also in the Netherlands) should be designated the competent court in the present case. The Court of Appeal confirmed this decision on the basis that the confirmation of the order of purchase contained an explicitly determined place for delivery, being an address in Horst, in the jurisdiction of Roermond, and that therefore the condition as provided for by article 31 of the CISG (that parties must have agreed upon a place of delivery) had been met, making the court of Roermond the competent court under article 5 of the Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial matters, 27 September 1968.

The seller appealed this decision to the Supreme Court, arguing that the Court of Appeal had failed to recognize that since the pipes had always been handed over to the party transporting the pipes from Barghe (in Italy) to Horst in Barghe, article 31(a) CISG should be interpreted as designating Barghe as the place of delivery (notwithstanding the wording of the confirmation of the order of purchase) and Horst as merely the address for shipment. The seller also argued that the mentioning on the confirmation of the order of purchase of Horst as the place for delivery does not entail a legal obligation for the seller under article 31 CISG to deliver in that place. The Supreme Court rejected the appeal on the basis that it was the prerogative of the Court of Appeal to interpret any agreement made between parties as to the place of delivery and that since the pipes had in fact been delivered in Horst the Court's designation of that place as the place of delivery was sufficiently motivated.

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Classification of issues present

APPLICATION OF CISG: Yes

APPLICABLE CISG PROVISIONS AND ISSUES

Key CISG provisions at issue: Article 31

Classification of issues using UNCITRAL classification code numbers:

31A [Delivery: contracts involving carriage of the goods]

Descriptors: Delivery ; Jurisdiction

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Editorial remarks

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Citations to other abstracts, case texts and commentaries

CITATIONS TO OTHER ABSTRACTS OF DECISION

Unavailable

CITATIONS TO TEXT OF DECISION

Original language (Dutch): Nederlands Internationaal Privaatrecht (1999) no. 245; Nederlands Juristenblad (2000), no. 507

Translation: Unavailable

CITATIONS TO COMMENTS ON DECISION

English: [2004] S.J. Kruisinga, (Non)-conformity in the 1980 Convention on Contracts for the International Sale of Goods: a uniform concept?, Intersentia at 58

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