Netherlands 17 March 2004 District Court Arnhem (Sluiter Ellwood II et al. v. Blumenerdenwerk Stender GmbH) [translation available]
[Cite as: http://cisgw3.law.pace.edu/cases/040317n1.html]
DATE OF DECISION:
CASE NUMBER/DOCKET NUMBER: 107309 /HA ZA 03-2099
CASE HISTORY: Unavailable
SELLER'S COUNTRY: Germany (defendant)
BUYER'S COUNTRY: Netherlands (plaintiff)
GOODS INVOLVED: Soil for plants
APPLICATION OF CISG: Court discussed CISG but applied German domestic law
APPLICABLE CISG PROVISIONS AND ISSUES
Key CISG provisions at issue:
Classification of issues using UNCITRAL classification code numbers:
4B [Scope of Convention (issues excluded): court ruled that applicability of seller's standard terms and conditions governed by gap-filling domestic law]; 7C23 [Gap-filling by domestic law]; 8A [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct]; 9C [Practices established by the parties]; 18A3 [Criteria for acceptance of offer: silence or inactivity insufficient]
4B [Scope of Convention (issues excluded): court ruled that applicability of seller's standard terms and conditions governed by gap-filling domestic law];
7C23 [Gap-filling by domestic law];
8A [Interpretation of party's statements or other conduct: intent of party making statement or engaging in conduct];
9C [Practices established by the parties];
18A3 [Criteria for acceptance of offer: silence or inactivity insufficient]
CITATIONS TO ABSTRACTS OF DECISION
(a) UNCITRAL abstract: Unavailable
(b) Other abstracts
CITATIONS TO TEXT OF DECISION
Original language (Dutch): CISG-Netherlands website <http://www.cisg.nl>; Website of the Dutch courts <http://www.rechtspraak.nl>
Translation (English): Text presented below
APPLICATION OF CISG: Yes [Article 1(1)(a)]
CITATIONS TO COMMENTS ON DECISION
UnavailableGo to Case Table of Contents
Queen Mary Case Translation Programme
Translation [*] by Vasiliki Mitria [**]
SUMMARY OF CONTENT
THE DISPUTE IN THE MAIN CASE AND THE INCIDENTAL PROCEEDINGS
1. In the main case, the [Buyer] has sued the [Seller] for 544,635 Euros plus interest at the legal rate since 5 June 2003, alleging that [Seller] should be obligated to pay the costs of the procedure.
2. [Buyer]'s position. The [Buyer] has contended that a contract was concluded between the parties on 12 April 2002 obligating the [Seller] to deliver mixtures of soil for plants in which 40 kilos clay baraklei by m3 were to be added. During the period between 17 May 2002 to 31 May 2002, the [Seller] delivered six trucks of soil. Afterwards, it appeared that there was no clay baraklei or insufficient clay baraklei in that soil, so that the [Seller] failed to execute his obligations under the contract. As a result, the party had to destroy conifers which were in this soil. The resulting damage in the sum asked by the [Buyer] has been taken into account by an approved expert. On the basis of Articles 35 and 74 of the CISG, which is the law the [Seller] declares applicable, [Buyer] alleges that the [Seller] is obliged to compensate the [Buyer] for this loss.
3. [Seller]'s position As defense, the [Seller] seeks to have the Court declare that it does not have jurisdiction to settle the dispute and that the [Buyer] should be directed to pay the costs of the proceeding. In support thereof, the [Seller] has cited its general conditions. In Article 8 of [Seller['s general conditions, there is a clause on choice of the forum, pursuant to which it is not the Court of Arnhem but the Court in the "arrondissement"-administrative division- where Wesel is located which has jurisdiction to settle the dispute.
4. The [Buyer] has contested the incidental proceeding.
REASONING OF THE COURT IN THE INCIDENTAL PROCEEDING
5. Within the framework of the assessment of the jurisdiction, it is of importance that the general conditions of the [Seller] apply to the agreement, as the [Seller] has contended and the [Buyer] has contested. This issue has to be resolved in accordance with the substantive law that applies to the agreement pursuant to the private international law of the forum. This law can be found first of all in the provisions of the CISG (Trb 1981, 184 en 1986, 61). These provisions include:
|-||Article 11 (which provides that the conclusion of a contract is not subject to any requirement as to form and therefore no specific requirements relating to form exist for the application of general conditions);
|-||The general provisions on formation of contracts in Part II of the CISG; and
|-||Article 8 on the interpretation of the declarations of the parties.|
This case concerns the purchase of moveable property between parties who are established in two different States, which both are Parties to the CISG while the exception of the purchase by a consumer cannot be here be invoked.
6. Because the application of general conditions is not expressly dealt with in the mentioned provisions of the CISG, the question has to be answered with the further applicable substantive law (Article 7(2) of the CISG). Pursuant to Article 4 of the Treaty of 19 June 1980 (Trb 1980, 156 and 1991, 109, hereafter EVO [Treaty of Rome]) this is the law of the country to which the agreement is the most closely linked. The agreement is deemed most closely linked to the country where the seller, as the party who has to perform the characteristic obligation (the delivery of the specific soil), had its general administration at the time of the conclusion of the agreement (Article 4 paragraph 2 of the Treaty of Rome). It is certain that the [Seller], even at that time, had its main establishment in Schermbeck, Germany. One cannot assume from the whole circumstances that the agreement has more links with the Netherlands, as the [Buyer] has contended, so that the exception that has to be restrictively applied of Article 4 paragraph 5 of the Treaty of Rome does not apply. The conclusion is that the question oF the application of the general conditions has to be assessed following German law as well.
7. In order to answer the question as to whether the general conditions of the [Seller] apply, the following circumstances are important.
8. By letter dated 12 April 2002, the [Seller] presented a concrete offer to the [Buyer] for the delivery of the soil. The [Buyer] accepted this offer; on the basis of this offer, the [Buyer] ordered the delivery of the soil. The first delivery took place on 17 May 2002. Later, by letter dated 22 May 2002, the [Seller] sent a new offer to the [Buyer]. The price was reduced. For the rest the former agreed conditions remained in force. The [Buyer] accepted this offer also, given that on the basis of it, he again ordered the [Buyer] to deliver the soil. Pursuant to this agreement, during the period 23 to 31 May, [Seller] delivered to X six more trucks with the soil that [Buyer] ordered. It can thus be assumed that the agreements between the parties are as laid down in the letters of 12 April and 22 May 2002. These letters do not refer to [Seller]'s general conditions. Therefore the [Seller] at the conclusion of the agreement has not stipulated the application of his general conditions. This is required not only pursuant to the provisions of the CISG but also pursuant German law. (par. 305 Abs. 2 BGB).
The fact that, in the so-called "Lieferscheinen" [subsequent acknowledgments] reference has been made to the [Seller]'s general conditions (also printed on the back of these documents) does not mean that those conditions that were communicated after the conclusion of this contract apply. In that respect, it is first important that the parties had done no business with each other before so that no one can think that a commercial (bestendige) practice existed between them existed which would allow to admit the silent acceptance of the validity of the seller's general conditions (Article 9 CISG). Moreover, it must be considered that the Lieferescheinen only serve as evidence that the goods in question have been delivered to the one who has signed for the receipt. That can also be, as has happened in this case too, persons who have no power to conclude an agreement on behalf of the [Buyer]. The [Seller] has not contended that after the delivery of the soil the general conditions still apply, for instance, through the mention of these general conditions by the [Seller] on the invoices sent to the [Buyer].
9. The conclusion is that the [Seller]'s general conditions do not apply to the agreement concluded between the parties and that no (valid) clause relating to the choice of the forum between the parties has been formed.
10. The foregoing, in turn, leads to the conclusion that the exception of incompetence has been unjustly invoked. This Court has jurisdiction to examine the actions, this on the basis of the specific beginning in Article 5 and under 1.a and b of the EEX- Regulation. As the party who is wrong, the [Seller] is directed to pay the costs of the trial of the incidental proceeding.
IN THE MAIN CASE
Given that the [Seller] has not yet pleaded in response, the main case will be re-referred to the "rol" (register for legal actions to be brought before the Court). Any further decision will be postponed.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiff of The Netherlands is referred to as [Buyer] and the Defendant of Germany is referred to as [Seller].
** Vasiliki Mitria, LLB (in French) at the University of Liege, Belgium - 2002; Research Assistant at the Institute for European Legal Studies (University of Liege) - 2002/2004; Post-Graduate Degree (in Dutch) in Advanced Studies in European Law at Ghent University, Belgium - 2003/2004; LLM student at Queen Mary, University of London, UK - 2004/2005.Go to Case Table of Contents